diabetes Is This A Cue?

[Shark]

I received a decision in July of 2008 granting me 50% PTSD, I already had 20% for Agent Orange Diabetes 2 and 10% for each limb for peripheral neuropathy for a new total of 80%. I applied for TDIU and was denied in October of 2008. Their reasoning was that I was not found unable to secure employment since I have an MBA and am in a Ph.D. program. This is despite letters from my VA Psychologist and Psychiatrist stating that I am unable to work. I have income tax records from 2006 on showing that I have only received SSDI and VA benefits and have not been employed. I filed a NOD in December of 2008 and have secured an attorney, but he will not do anything until he receives my C file, even though I have a copy that I received last month! It has been 3 months since he sent in a request.

So, the PTSD is working overtime and I am getting more and more upset and was thinking about filing a CUE due to " RO had failed to apply the “clear and convincing evidence” standard of proof mandated by 38 C.F.R. § 3.343©(1). " that I could work.

Does anyone have any thoughts on this approach?

Thanks!

[deltaj]

I received a decision in July of 2008 granting me 50% PTSD, I already had 20% for Agent Orange Diabetes 2 and 10% for each limb for peripheral neuropathy for a new total of 80%. I applied for TDIU and was denied in October of 2008. Their reasoning was that I was not found unable to secure employment since I have an MBA and am in a Ph.D. program. This is despite letters from my VA Psychologist and Psychiatrist stating that I am unable to work. I have income tax records from 2006 on showing that I have only received SSDI and VA benefits and have not been employed. I filed a NOD in December of 2008 and have secured an attorney, but he will not do anything until he receives my C file, even though I have a copy that I received last month! It has been 3 months since he sent in a request.

So, the PTSD is working overtime and I am getting more and more upset and was thinking about filing a CUE due to " RO had failed to apply the “clear and convincing evidence” standard of proof mandated by 38 C.F.R. § 3.343©(1). " that I could work.

Does anyone have any thoughts on this approach?

Thanks!

If you are receiving SSD due to a service-connected disability, go to the Social Security office and make a written request that copies of your Social Security medical records be sent to V.A. in support of your pending claim for total disability and individual unemployability. After these records are received V.A. will have to consider this new and material evidence under 38 CFR 3.156 and 38 CFR 3.400 (q).

[jbasser]

Cue is a collattarel attack on a (FINAL) decision which means 1 year past the decision date. Failure to apply the appropriate regs can be considered cue but you have to show them why and then reasonable minds must differ from the original decision.

It is tough to prove a CUE but it can and has been done.

Show them the regs and how they did not follow them.

Cue cannot be filed on harmless errors or how evidence is weighed.

Good Luck.

Edited June 17, 2009 by jbasser

[Pete53]

I guess that I was under the mistaken impression that CUE could be requested when the Veteran discovered the error or CUE and requested the VA to review for it.

In most legal situation a correction of a procedural error does not have a time limit.

I am probably full of beans but that is what I thought

[Berta]

Do you receive SSA disability benefits solely for the service connected conditions?

If so-Does VA know this and did they consider your SSDI records in their decision?

Did they fully consider the letters you have as evidence stating you are unemployable?

Did the 2 VA doctors clearly state that you cannot work due to your service connected disabilities?

I see no basis for CUE claim here at all.

I suggest that you go over the SOC and see if they have missed any critical evidence in their decision.

[Berta]

forgot to add- when a disabled vet continues their education it can become a 2 edged sword-

the VA tried to drop my husband's PTSD rating when he went back to college under Voc Rehab-after ONE semester they thought he had become a rocket scientist.

however we overcame that idea by attaching to the NOD copies of his grades, and of his tutoring sessions (he had difficulties in school due to misdiagnosed visual condition) and also we attached copies of his accomodations requests for a note taker and special exam accomodation- he could not handle the ticking time clock they use for exams due to his PTSD)

also I certainly wrote a scathing letter to them regarding something else they tried to use against him ( 3 months of VA part time employment) and they dropped the whole idea of lowering his comp.

I commend you for being in a Phd program but VA certainly views this as attaining a high level of education for some purpose which is usually for employment.

If you struggle with your school work or have needed accomodations from the school due to your disability-these are factors that VA needs to consider.

[Shark]

Do you receive SSA disability benefits solely for the service connected conditions?

If so-Does VA know this and did they consider your SSDI records in their decision?

Did they fully consider the letters you have as evidence stating you are unemployable?

Did the 2 VA doctors clearly state that you cannot work due to your service connected disabilities?

I see no basis for CUE claim here at all.

I suggest that you go over the SOC and see if they have missed any critical evidence in their decision.

Thanks Berta...I did send the VA the notification letter that I received from SS awarding me SSDI, but I do not think that they ever received anything from SS. I am going to go to SS and get them to send the copies of the medical info to them. I have not received a SOC yet...VARO told me that it can take up to a year just to get the SOC! The 2 VA doctors were very specific in stating that due to my anger and anxiety issues that I could not work.